Anderson & Boback Logo
divorcing someone in military

Default Judgments When Divorcing Someone in the Military

Categorized as Military Divorce

What Happens If My Spouse Does Not Respond to My Divorce Petition

Divorcing someone in the military involves special rules especially when a military spouse fails to respond to a divorce petition. In any dissolution of marriage proceeding, the party that files the initial petition has the obligation to serve a copy of the divorce petition on the opposing party with instructions to file an answer within 28 days.

Many times the party initiating the dissolution of marriage will have the required documents served on the opposing party only to have the opposing party fail to respond or file an appearance in the dissolution of marriage action. In most cases, this is a relief. As long as the Court has jurisdiction and the other party was properly served, the Court can issue a default judgment against the opposing party. A default judgment is essentially the Court granting the relief requested by the petitioning party because the responding party failed to appear or respond.

Protection from Default Judgment for Members of the Military

However, if you are filing for divorce from someone in the military and your spouse fails to respond, you may not be able to get a default judgment entered against them. Pursuant to the Servicemembers Civil Relief Act (the “Act”), specifically section 3931 (50 U.S.C. §3931), servicemembers are protected from having a default judgment entered against them in any civil action unless certain requirements are met.

Requirements for Protection from Default Judgment

The first requirement is that the Petitioner must file an Affidavit which states whether the Respondent is in the military service and showing necessary facts to support that conclusion. The second requirement is that the Court must appoint an attorney to represent the defendant. This attorney must make efforts to locate the servicemember. If the appointed attorney cannot locate the servicemember, the attorney’s actions cannot be held against the servicemember.

The third step the Court must take if the servicemember is not found is for the Court to issue a stay of the action. A stay is essentially a hold of the action. This means nothing can take place in the action until the stay is lifted. Pursuant to the Servicemembers Civil Relief Act, the stay must last a minimum of ninety (90) days. If the servicemember does receive notice of the pending action, they can request a stay as well under section 3932.

Court Authority to Vacate the Default Judgment

If these rules are not followed and a default judgment is entered against a defendant who is in the military, the Court has the authority to vacate or set aside the judgment. Which means that the petitioner would be back at the beginning without any relief.

Plan Ahead When Divorcing Someone in the Military

Therefore, if you are married to someone who is serving in the military, it is best to locate them and discuss the matter with them before filing a dissolution of marriage. Knowing where the servicemember is located and whether they are willing to submit to the jurisdiction of the Court will help the process go smoother and help eliminate any potential surprises down the road.

As leading military divorce lawyers, we help our clients address and navigate the complexities of divorcing someone in the military. Please contact Anderson & Boback if you are facing a military divorce or have questions about divorcing a soldier especially if you think your spouse may fail to respond to the divorce petition.


Was this information helpful?

You May Also Like

Wonder if your spousal maintenance is modifiable? This question was addressed in Scarp v. Rahman when the father in the case of sought to modify his maintenance obligation.  The trial court would not allow the modification so he sought an…

Birthdays are a big deal to kids - they usually get a party with their friends with cake, balloons, presents, and if they are lucky, a ball pit to jump into at Chucky Cheese! The day is all about them.…

Our firm represents a lot of military families and for the most part, handling a military divorce is just like any other divorce.  There are specific rules that need to be followed, however, and those parents in the military facing…

Changes to Spousal Maintenance Law in Illinois In 2019, a significant change in the tax code was made regarding maintenance, which resulted in spousal maintenance (formerly known as “alimony”, also known as “spousal support”) being tax-free to the recipient and…

Illinois has modified its statutes wherein parents are now allocated “parental responsibilities” and “parenting time” instead of “custody”.  The purpose of these changes was to try and give the parents less to fight over.  You can win “custody” but winning…

For Illinois parents that are no longer together or facing divorce, understanding the basics of child custody law is important. First, the term “custody” no longer exists in Illinois. The State of Illinois changed its laws regarding custody in 2016,…

Anderson & Boback small logo

Download our Divorce Planning Guide today!

Get the information you need to prepare for divorce with our free resource Guide to Planning for Your Divorce.

What our clients are saying

Schedule a Discreet Consultation Today!

    Firm Overview

    Anderson & Boback is a highly-respected, experienced Chicago family law firm, skilled in negotiation and litigation. When divorce and other family law issues make your life chaotic and uncertain, you want your case resolved as quickly and fairly as possible. Call Now 312-715-0870